The USS John S McCain, a United States Navy guided-missile destroyer, collided with the M/V Alnic MC, a Liberian-flagged merchant vessel, in the Singapore Strait Traffic Separation Scheme (TSS) at 05h24 on 21 August 2017. Ten sailors aboard the McCain died and 48 sailors were injured. There were no fatalities or injuries on the Alnic. Search and rescue efforts began immediately after the collision. Responders from the Republic of Singapore Navy and Coast Guard were at the site within two and a half hours, and soon half a dozen vessels from Singapore and Malaysia had arrived at the collision site. Several severely injured sailors from the McCain were taken to Singapore General Hospital. The Malaysian and Singaporean navies swept within a range of 10 nautical miles of the McCain’s path for missing sailors. The search and rescue efforts continued for more than 80 hours, covered in excess of 2,100 square miles, and included support from the United States, Singapore, Malaysia, Indonesia and Australia. Singapore’s Transport Safety Investigation Bureau (TSIB) conducted an inquiry into the collision and published a report on 8 March 2018 stating that it had occurred 'in the westbound lane of the Singapore Strait, in Singapore territorial waters'.

Energetic Tank Inc, the owner of the Alnic, petitioned pursuant to 46 USC §§ 30501 ff for exoneration or to limit its liability. It now moves for a ruling that Singapore law applies to all substantive matters of liability and damages. The claimants (including more than 40 members of the McCain’s crew who allege personal injuries, representatives for the McCain’s sailors who died in the collision and the US Government) contend that US law applies.

Held: The petitioner’s motion for application of foreign law is granted. Singapore law is the correct choice of law applicable to all substantive matters of liability and the availability and calculation of damages in this case.

The petitioner has raised the issue of foreign law in a timely fashion. The petitioner filed a r 44.1 notice on 3 January 2019, stating that it would raise the Convention for the Unification of Certain Rules of Law Relating to Collisions Between Vessels, signed in Brussels on 23 September 1910 (the Collision Convention 1910) as its choice of law. Singapore, along with much of the rest of the world (but not the US), has ratified the Convention, and so the petitioner’s specification of Singapore law does not represent a change in course. The requirement for notice under r 44.1 is satisfied.

The claimants seek to apply the factors laid out in Lauritzen v Larsen, 345 US 571 (1953), as expanded in Hellenic Lines Ltd v Rhoditis, 398 US 306 (1970). Another case, Romero v Int'l Terminal Operating Co, 358 US 354, 382 (1959), stated that the Lauritzen factors 'were intended to guide courts in the application of maritime law generally'. Lauritzen and the subsequent cases 'adopted an interest analysis that looks to: (1) the place of the wrongful act; (2) the law of the ship’s flag; (3) the domicile of the injured party; (4) the domicile of the shipowner; (5) the place of the contract; (6) the inaccessibility of the foreign forum; (7) the law of the forum; and (8) the shipowner’s base of operations'. The parties argue that Lauritzen and Rhoditis supply the appropriate test but apply the pertinent factors to reach opposing results. The petitioner sees the law of the place of the wrongful act as the dominant factor, and the other factors as pointing neither way, while the claimants emphasise the law of the flag and of the forum as primary, with several other factors also leaning in their favour. Regardless of the Court’s choice of law, the parties agree that the International Regulations for Preventing Collisions at Sea (the COLREGS) govern the Alnic and the McCain as vessels navigating the Singapore Strait. The US, Singapore and Malaysia have all accepted the COLREGS.

Despite the broad statement in Romero that the factors are intended to 'guide courts in the application of maritime law generally', the claimants have been able to point to only a few comparable cases that implicate the application of the Lauritzen-Rhoditis factors to a collision. The test laid out in Lauritzen and expanded in Rhoditis, both Jones Act cases, is entirely unsuited to deciding a choice-of-law question arising in a limitation of liability case after a collision half way around the globe involving the COLREGS, a Liberian-flagged vessel and a US Navy warship based in Japan. The test in Lauritzen was explicitly designed, in the language of that case, to resolve 'a problem of statutory construction' and define the outer boundary of the Jones Act’s expansive promise of relief to '[a]ny seaman'. The Government places considerable emphasis on Lauritzen’s statement that the 'test of location of the wrongful act or omission, however sufficient for torts ashore, is of limited application to shipboard torts'. But there is nothing 'shipboard' about a collision between two vessels at sea. In short, the claimants’ argument that under Lauritzen the law of the place of the wrong has lost its longstanding importance in collision cases between ships of different flags in foreign waters is contradicted by decades of subsequent admiralty practice in this Circuit and others. Their contention that the Court should ignore the sustained prominence of the lex loci delicti in post-Lauritzen collisions and instead blindly follow the logic of seafarer injury cases is not tenable. The other Lauritzen factors are like a weathervane in a windstorm - always spinning, but never pointing in one direction.

The law of the ship’s flag, which the claimants strongly favour, is not persuasive because the ships are of two different flags. The Liberian flag is one of convenience, and the US flag is on a vessel that is homeported in another country, Japan. While the injured parties are predominantly US Navy sailors, it cannot be the case that US law applies every time a Navy ship is involved in a collision anywhere in the world. And the Court cannot ignore that while the Alnic’s crew escaped fatalities and personal injuries, the Alnic was damaged in the collision. The owner of the Alnic, Energetic Tank, is a Liberian corporation, and the ship’s manager is based in Greece, so the factors for domicile and base of operations are unhelpful. The inaccessibility of the foreign forum also leads nowhere. Here, the only factor that points convincingly to any relevant body of law is the place of the wrong.

The claimants contend that both Malaysia and Singapore 'could assert' claims of sovereignty over the waters where the collision took place, and thus it is impossible to find that Singapore law applies. The US Government states that Malaysia and Singapore have long contested sovereignty over the area in question, particularly two rock features, Pedra Branca and Middle Rocks, near the site of the collision. The two nations took their dispute to the International Court of Justice (ICJ), which found in a 2008 judgment that Singapore possessed sovereignty over Pedra Branca and Malaysia possessed sovereignty over Middle Rocks. But that does not mean that US law is the correct choice. The claimants state that the collision occurred 24 nautical miles from Singapore’s mainland, but only 7.7 nautical miles from the nearest Malaysian land. The claimants further contend that the ICJ 'purposefully and explicitly left unresolved' competing claims between Singapore and Malaysia to the waters in which the collision occurred. The petitioner responds that its contention that the collision occurred in Singapore territorial waters is 'based on the clear and unequivocal assertions and exercise of jurisdiction by Singapore in this matter'. It argues that it was 'no accident or coincidence' that the two vessels 'were in Singapore waters, and neither party could claim surprise by being subject to Singapore law by virtue of having voluntarily entered its waters'. Further, it argues that Singapore is the principal manager of traffic in the Strait, stands to suffer from a major accident in the Strait, and 'has a very substantial interest in seeing that its maritime law uniformly applies to collisions between foreign vessels within its waters'. Singapore, in its investigation report, described the collision as having occurred 'in Singapore territorial waters', while Malaysia did not produce a report. Other than pointing out the dispute, the claimants do not suggest how choosing Singapore over Malaysian law has any substantive bearing on the case.

The Court does not adjudicate any rights to the waters, or otherwise implicate delicate international relations. The Court holds only, based on venerable choice of law considerations firmly within the judiciary’s grasp, that Singapore law is more appropriate to this case than US law. Both vessels were en route to Singapore when the collision occurred, and were in the Singapore TSS. There is no doubt that Singapore acted at all times as though the collision took place in its waters. It provided emergency aid and vessels. It provided hospital care for the injured US sailors. The Singapore TSIB conducted an inquiry concerning the causes of the collision at sea. The US Government accepted Singapore’s aid and assistance and participated in the Singapore investigation by submitting information to the TSIB. The application of Malaysian law is a phantom question of law and fact.

Both Singapore and Malaysia have ratified the Collision Convention 1910. No party suggests that there is any difference between Malaysian and Singapore law applicable to this collision. All these considerations and the overwhelming weight of authority guide the Court’s finding that United States law does not apply as to liability in this case. Foreign law, specifically Singapore law, is the proper choice of law to determine substantive issues of liability and damages.